The Attorney General of Canada,the Attorney General for Ontario,the Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General for New Brunswick, the Attorney General of Manitoba, the Attorney General for Alberta, the Canadian Police Association (CPA), the Canadian Association of Chiefs of Police (CACP), Canadians Against Violence (CAVEAT), the Criminal Lawyers' Association, the Evangelical Fellowship of Canada, Focus on the Family (Canada) Association, the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association,Beyond Borders, Canadians Addressing Sexual Exploitation (CASE), End ChildProstitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT)and the International Bureau for Children's RightsInterveners

The accused was charged with two counts of possession of child pornography under s. 163.1(4) of the Criminal Code and two counts of possession of child pornography for the purposes of distribution or sale under s. 163.1(3). "Child pornography",as defined in s. 163.1(1) of the Code, includes visual representations that show a person who is or is depicted asunder the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity and visual representations the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years. "Child pornography" also includes visual representations and written material that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under the Code. Prior to his trial, the accused brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Code, alleging a violation of his constitutional guarantee of freedom of expression. The Crown conceded that s. 163.1(4) infringed s. 2(b) of the Canadian Charter of Rights and Freedoms but argued that the infringement was justifiable under s. 1 of the Charter. Both the trial judge and the majority of the British Columbia Court of Appeal ruled that the prohibition of the simple possession of child pornography as defined under s. 163.1 of the Code was not justifiable in a free and democratic society.

Held: The appeal should be allowed and the charges remitted for trial.

PerMcLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ.: In order to assess the constitutionality of s. 163.1(4), it is important to ascertain the nature and scope of any infringement. Until it is known what the law catches, it cannot be determined that the law catches too much. Consequently, the law must be construed, and interpretations that may minimize the alleged overbreadth must be explored. In light of Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, the word "person" in the definition of child pornography should be construed as including visual works of the imagination as well as depictions of actual people. The word "person" also includes the person possessing the expressive material. The term "depicted" refers to material that a reasonable observer would perceive as representing a person under the age of 18 years and engaged in explicit sexual activity. The expression "explicit sexual activity" refers to acts at the extreme end of the spectrum of sexual activity -- acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence. An objective approach must be applied to the terms "dominant characteristic" and "for a sexual purpose". The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the child's sexual organ or anal region in a manner that is reasonably perceived as intended to cause sexual stimulation to some viewers. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence. As for written material or visual representations that advocate or counsel sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code, the requirement that the material "advocates" or "counsels" signifies that, when viewed objectively, the material must be seen as actively inducing or encouraging the described offences with children.

Parliament has created a number of defences in ss. 163.1(6) and (7) of the Code which should be liberally construed as they further the values protected by the guarantee of free expression. These defences may be raised by the accused by pointing to facts capable of supporting the defence, at which point the Crown must disprove the defence beyond a reasonable doubt. The defence of "artistic merit" provided for in s. 163.1(6) must be established objectively and should be interpreted as including any expression that may reasonably be viewed as art. Section 163.1(6) creates a further defence for material that serves an "educational, scientific or medical purpose". This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. Finally, Parliament has made available a "public good" defence. As with the medical, educational or scientific purpose defences, the defence of public good should be liberally construed.

The possession of child pornography is a form of expression protectedby s. 2(b) of the Charter. The right to possess expressive material is integrally related to the development of thought, opinion, belief and expression as it allows us to understand the thought of others or consolidate our own thought. The possession of expressive material falls within the continuum of intellectual and expressive freedom protected by s. 2(b). The accused accepts that harm to children justifies criminalizing possession of some forms of child pornography. The fundamental question therefore is whether s. 163.1(4) of the Code goes too far and criminalizes possession of an unjustifiable range of material.

The accused also alleges that s. 163.1(4) violates his right to liberty under s. 7 of the Charter, arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. It is not necessary to consider this argument separately as it wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2(b) breach. The s. 1 analysis generally, and the minimal impairment consideration in particular, is the appropriate forum for addressing over broad restrictions on free expression.

In adopting s. 163.1(4), Parliament was pursuing the pressing and substantial objective of criminalizing the possession of child pornography that poses a reasoned risk of harm to children. The means chosen by Parliament are rationally connected to this objective. Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice. Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. With respect to minimal impairment, when properly interpreted, the law catches much less material unrelated to harm to children than has been suggested. However, the law does capture the possession of two categories of material that one would not normally think of as "child pornography" and that raise little or no risk of harm to children: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use; and (2) visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use. The bulk of the material falling within these two classes engages important values underlying the s. 2(b) guarantee while posing no reasoned risk of harm to children. In its main impact, s. 163.1(4) is proportionate and constitutional. Nonetheless, the law's application to materials in the two problematic classes, while peripheral to its objective, poses significant problems at the final stage of the proportionality analysis. In these applications the restriction imposed by s. 163.1(4) regulates expression where it borders on thought. The cost of prohibiting such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1.

The appropriate remedy in this case is to read into the law an exclusion of the two problematic applications of s. 163.1. The applications of the law that pose constitutional problems are exactly those whose relation to the objective of the legislation is most remote. Carving out those applications by incorporating the proposed exceptions will not undermine the force of the law; rather, it will preserve the force of the statute while also recognizing the purposes of the Charter. The defects of the section are not so great that their exclusion amounts to impermissible redrafting and carving them out will not create an exception-riddled provision bearing little resemblance to the provision envisioned by Parliament. While excluding the offending applications will not subvert Parliament's object, striking down the statute altogether would most assuredly do so. Accordingly, s. 163.1(4) should be upheld on the basis that the definition of "child pornography" in s. 163.1 should be read as though it contained an exception for: (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use. These two exceptions apply as well to the offence of "making" child pornography under s. 163.1(2) (but not to printing, publishing or possessing child pornography for the purpose of publication). The exceptions will not be available where a person harbours any intention other than mere private possession.

PerL'Heureux-Dubé, Gonthierand Bastarache JJ.: Under our society's democratic principles, individual freedoms such as expression are not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person. The Crown conceded that the right to free expression was infringed in all respects, unfortunately depriving the Court of the opportunity to fully explore the content and scope of s. 2(b) of the Charter as it applies to this case. At the same time, it is recognized that, at this stage, our jurisprudence leads to the conclusion that, although harmful, the content of child pornography cannot be the basis for excluding it from the scope of the s. 2(b) guarantee. No separate analysis under s. 7 of the Charter is required. The s. 7 liberty interest is encompassed in the right of free expression and proportionality falls to be considered under s.1 of the Charter. The only issue is whether the infringement of freedom of expression is justifiable under s. 1. Section 1 recognizes that in a democracy competing rights and values exist. The underlying values of a free and democratic society guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights. A principled and contextual approach to s. 1 ensures that courts are sensitive to the other values which may compete with a particular right and allows them to achieve a proper balance among these values. At each stage of the s. 1 analysis close attention must be paid to the factual and social context in which an impugned provision exists.

An appraisal of the contextual factors in this case leads to the conclusion that Parliament's decision to prohibit child pornography is entitled to an increased level of deference. Child pornography, as defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. Although not empirically measurable, nor susceptible to proof in the traditional manner, the attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing representations or treatment. Expression that degrades or dehumanizes is harmful in and of itself as all members of society suffer when harmful attitudes are reinforced. The possibility that pornographic representations may be disseminated creates a heightened risk of attitudinal harm. The violation of the privacy rights of the persons depicted constitutes an additional risk of harm that flows from the possibility of dissemination. Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament's reasoned apprehension that child pornography also causes attitudinal harm. The lack of scientific precision in the social science evidence relating to attitudinal harm is not a valid reason for attenuating the Court's deference to Parliament's decision.

The importance of the protection of children is recognized in both Canadian criminal and civil law. The protection of children from harm is a universally accepted goal. International law is rife with instruments that emphasize the protection of children and a number of international bodies have recognized that possession of child pornography must be targeted to effectively address the harms caused by this type of material. Moreover, domestic legislation in a number of democratic countries criminalizes the simple possession of child pornography.

As a form of expression, child pornography warrants less protection since it is low value expression that is far removed from the core values underlying the protection of freedom of expression. Child pornography has a limited link to the value of self-fulfilment, but only in its most base aspect. Furthermore, in prohibiting the possession of child pornography, Parliament promulgated a law which seeks to foster and protect the equality rights of children, along with their security of the person and their privacy interests. The importance of these Charter rights cannot be ignored in the analysis of whether the law is demonstrably justified in a free and democratic society and warrants a more deferential application of the criteria set out in the Oakes test. Finally, Parliament has the right to make moral judgments in criminalizing certain forms of conduct. The Court should be particularly sensitive to the legitimate role of government in legislating with respect to our social values.

Section 163.1(4) of the Code constitutes a reasonable and justified limit upon freedom of expression. In proscribing the possession of child pornography, Parliament's overarching objective was to protect children. Any provision which protects both children and society by attempting to eradicate the sexual exploitation of children clearly has a pressing and substantial purpose. Section 163.1(4) is also proportionate to the objective. First, prohibiting the possession of child pornography is rationally connected to the aim of preventing harm to children and society. The possession of child pornography contributes to the cognitive distortions of paedophiles, reinforcing their erroneous belief that sexual activity with children is acceptable. Child pornography fuels paedophiles' fantasies, which constitute the motivating force behind their sexually deviant behaviour. Section 163.1(4) plays an important role in an integrated law enforcement scheme which protects children against the harms associated with child pornography. Paedophiles use child pornography for seducing children and for grooming them to commit sexual acts. Lastly, children are abused in the production of child pornography. The prohibition of the possession of child pornography is intended to reduce the market for this material. If consumption of child pornography is reduced, presumably production and the abuse of children will also be reduced.

Second, the prohibition of the possession of child pornography minimally impairs the right to free expression. Although s. 163.1(4) is directed only to the private possession of child pornography, children are particularly vulnerable in the private sphere, since a large portion of child pornography is produced privately and used privately by those who possess it. The harmful effect on the attitudes of those who possess child pornography similarly occurs in private. Consequently, prohibiting the simple possession of child pornography has an additional reductive effect on the harm it causes. The prohibition of the possession of child pornography also captures visual and written works of the imagination which do not involve the participation of any actual children or youth in their production; in enacting s. 163.1(4), Parliament sought to prevent not only the harm that flows from the use of children in pornography, but also the harm that flows from the very existence of images and words which degrade and dehumanize children and to send the message that children are not appropriate sexual partners. The focus of the inquiry must be on the harm of the message of the representations and not on their manner of creation, or on the intent or identity of their creator. Given the low value of the speech at issue in this case and the fact that it undermines the Charter rights of children, Parliament was justified in concluding that visual works of the imagination would harm children.
The inclusion of written material in the offence of possession of child pornography does not amount to thought control. The legislation seeks to prohibit material that Parliament believed was harmful. The inclusion of written material which advocates and counsels the commission of offences against children is consistent with this aim, since, by its very nature, it is harmful, regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles and could incite them to offend. Although the prohibition in s. 163.1(4) extends to teenagers between the ages of 14 and 17 who keep pornographic videotapes or pictures of themselves, this effect of the provision is a reasonable limit on teenagers' freedom of expression. A review of adolescent child pornography cases reveals that there is a great risk that they will be exploited in its creation. Hence, while adolescents between the ages of 14 and 17 may legally engage in sexual activity, Parliament had a strong basis for concluding that the age limit in the definition of child pornography should be set at 18. It is not necessary that the provision contain a defence to protect teenagers who are in possession of erotic videos or pictures of themselves. Such a defence would undermine Parliament's objective of protecting all children, since some adolescents under the age of 18 groom other children into engaging in sexual conduct. There is also no guarantee, even when a teenager is in possession of a pornographic picture or videotape depicting himself or herself, that it was created in a consensual environment. The creation of permanent records of teenagers' sexual activities has consequences which children of that age may not have sufficient maturity to understand. The Court should defer to Parliament's decision to restrict teenagers' freedom in this area. The provision does not amount to a total ban on the possession of child pornography. The provision reflects an attempt by Parliament to weigh the competing rights and values at stake and achieve a proper balance. The definitional limits act as safeguards to ensure that only material that is antithetical to Parliament's objectives in proscribing child pornography will be targeted, and the legislation incorporates defences of artistic merit, educational, scientific or medical purpose, and a defence of the public good.
Third, when the effects of the provision are examined in their overall context, the benefits of the legislation far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy. Section 163.1(4) helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented. In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes. The law does not trench significantly on speech possessing social value since there is a very tenuous connection between the possession of child pornography and the right to free expression. At most, the law has a detrimental cost to those who find base fulfilment in the possession of child pornography. The privacy of those who possess child pornography is protected by the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter. The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by the law is closely related to the specific harmful effects of child pornography. Moreover, the provision's beneficial effects in protecting the privacy interests of children are proportional to the detrimental effects on the privacy of those who possess child pornography.

Canada. Health and Welfare Canada. Report of the Special Advisor to the Minister of National Health and Welfare on Child Sexual Abuse in Canada. Reaching for Solutions. By Rix G. Rogers. Ottawa: The Advisor, 1990.

Cheryl J. Tobias and Kenneth J. Yule, for the intervener the Attorney General of Canada.

James H. Flaherty, Christine Bartlett-Hughes and Laurie Lacelle, for the intervener the Attorney General for Ontario.

Joanne Marceau and Jacques Gauvin, for the intervener the Attorney General of Quebec.

Daniel A. MacRury, for the intervener the Attorney General of Nova Scotia.

Mary Elizabeth Beaton, for the intervener the Attorney General for New Brunswick.

Shawn Greenberg and Holly Penner, for the intervener the Attorney General of Manitoba.

Joshua B. Hawkes, for the intervener the Attorney General for Alberta.

Timothy S. B. Danson, for the interveners the Canadian Police Association (CPA), the Canadian Association of Chiefs of Police (CACP) and Canadians Against Violence (CAVEAT).

Frank Addario and Michael Lacy, for the intervener the Criminal Lawyers' Association.

Robert W. Staley, Meredith Hayward and Janet Epp Buckingham, for the interveners the Evangelical Fellowship of Canada and the Focus on the Family (Canada) Association.

John D. McAlpine, Q.C., Bruce Ryder and Andrew D. Gay, for the intervener the British Columbia Civil Liberties Association.

Patricia D.S. Jackson and Tycho M. J. Manson, for the intervener the Canadian Civil Liberties Association.

David Matas, Mark Eric Hecht and Jean-François Noël, for the interveners Beyond Borders,Canadians Addressing Sexual Exploitation (CASE), End Child Prostitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT) and the International Bureau for Children's Rights.

Solicitor for the appellant: The Ministry of the Attorney General, Vancouver.

Solicitors for the intervener the Canadian Civil Liberties Association: Tory Tory, Toronto.

Solicitors for the interveners Beyond Borders, Canadians Addressing Sexual Exploitation (CASE), End Child Prostitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT) and the International Bureau for Children's Rights: David Matas, Winnipeg.

CITATION
Before publication in the S.C.R., this judgment should be cited using the neutral citation: R. v. Sharpe, 2001 SCC 2. Once the judgment is published in the S.C.R., the neutral citation should be used as a parallel citation: R. v. Sharpe, [2001] 1 S.C.R. xxx, 2001 SCC 2.

and (7):
(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).

163. ...
(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

(5) For the purposesof this section, the motives of an accused are irrelevant.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The first category would protect written or visual expressions of thought, created through the efforts of a single individual, and held by that person for his or her eyes alone. The teenager's confidential diary would fall within this category, as would any other written work or visual representation confined to a single person in its creation, possession and intended audience.

121Schachter, supra,holds that reading in will be appropriate only where (1) the legislative objective is obvious and reading in would further that objective or constitute a lesser interference with that objective than would striking down the legislation; (2) the choice of means used by the legislature to further the legislation's objective is not so unequivocal that reading in would constitute an unacceptable intrusion into the legislative domain; and (3) reading in would not require an intrusion into legislative budgetary decisions so substantial as to change the nature of the particular legislative enterprise. The third requirement is not of concern here. The first two inquiries -- conformity with legislative objective and avoidance of unacceptable law-making -- require more discussion.

There is, obviously, also the problem the courts will face. The Supreme Court of Canada has to interpret the Constitutionand the CriminalCode. If the legislation is very vague, greater power is given to the judges. This is a difficulty which, in cases involving obscenity and pornography, perhaps, cannot be avoided. In other words, to a certain extent it has to be left to the courts.

(Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 51, June 22, 1993, at p. 51:54.)

As Senator Beaudoin predicted, it has fallen to the Courts to interpret s. 163.1(4) and judge its ultimate validity in accordance with that interpretation. The British Columbia Courts found the law constitutionally wanting and struck it down in its entirety. I too, find it to be constitutionally imperfect. However, the defects lie at the periphery of the law's application. In my view, the appropriate remedy is to uphold the law in its broad application, while holding that it must not be applied to two categories of material, as described above: self-created, privately held expressive materials and private recordings that do not depict unlawful sexual activity.

(a)The first exception protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use. This exception protects deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator.

(b) The second exception protects a person's possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.

IIThese two exceptions apply equally to the offence of "making" child pornography under s. 163.1(2).

IINeither exception affords protection to a person harbouring any other intention than private possession; any intention to distribute, publish, print, share or in any other way disseminate these materials will subject a person to the full force of s. 163.1.

In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.

(a)an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b)an offence punishable on summary conviction.

Section 163.1(1) defines "child pornography" as:

(a)a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b)any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

These provisions must be read in conjunction with s. 163(3), which provides a "public good" defence:

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

They must also be read in light of the broad defences found in s. 163.1(6):

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

They're extremely violent stories, the majority of them, with sexual acts involving very young children, in most cases, under the age of 10 engaged in sadomasochistic and violent sex acts with either adults and children, other children, both male and female.

They're extremely disturbing with just the descriptions of the sexual acts with the children particularly in relation to circumcision. And the theme is often that the child enjoys the beatings and sexual violence and that they are wanting it and actually seeking it out.

Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfilment and personal autonomy.

With respect to s. 193 of the Code, I do not see how the provision can be said to infringe the guarantee of freedom of expression either on its own or in combination with s. 195.1(1)(c). In my view, only s. 195.1(1)(c) limits freedom of expression. Section 193 deals with keeping or being associated with a common bawdy-house and places no constraints on communicative activity in relation to a common bawdy-house. I do not believe that "expression" as used in s. 2(b) of the Charter is so broad as to capture activities such as keeping a common bawdy-house. [Emphasis added.]

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

In Slaight Communications, supra, at p. 1056, a majority of this Court recognized that the underlying values of a free and democratic society guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.

The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R v. Oakes, [1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.

would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole.

. . . the alteration of views held by the recipients of hate propaganda may occur subtlely, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient's mind as an idea that holds some truth, an incipient effect not to be entirely discounted . . . .

. . . the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.

Government sponsored hatred on group grounds would violate section 15 of the Charter. Parliament promotes equality and moves against inequality when it prohibits the wilful public promotion of group hatred on these grounds. It follows that government action against group hate, because it promotes social equality as guaranteed by the Charter, deserves special constitutional consideration under section 15.

In Taylor, supra, Dickson C.J. further emphasized the role of other Charter rights in the application of s. 1, stating that in applying Oakes, the Court must "give full recognition to other provisions of the Charter, in particular ss. 15 and 27" (at pp. 916-17). In our view, the positive influence of a government measure on other Charter rights, and in turn the negative effect of an expressive activity on the rights of other members of the community, are important factors to be considered in the application of the s. 1 analysis. This approach ensures that the analysis of whether an impugned provision is reasonably justified in a free and democratic society is undertaken in a manner which promotes our democratic values.

. . . we are concerned with depictions that can be seen to undermine the values which we believe are fundamental to our society. It is our view that material which uses and depicts children in a sexual way for the entertainment of adults, undermines the rights of children by diminishing the respect to which they are entitled.

This description of the effects of child pornography on children's rights strikes a chilling cord within us. The written material and images captured by s. 163.1(1) (which depict children engaged in explicit sexual activity or which depict their sexual organs for a sexual purpose), degrade and dehumanize them. They portray children as mere sexual objects available for the gratification of adults. They play on children's inequality. Hence, this material is in direct conflict with the guarantee of equality in s. 15. In Butler, supra, Sopinka J. stated as follows, at p. 497:

. . . if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material. Materials portraying women as a class as objects for sexual exploitation and abuse have a negative impact on `the individual's sense of self-worth and acceptance'.

Similarly, Parliament's attempt to prohibit the possession of child pornography can be seen as promoting children's right to equality.

. . . I cannot agree with the suggestion of the appellant that Parliament does not have the right to legislate on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society.

The Court should be particularly sensitive to the legitimate role of government in legislating with respect to our social values. Like all legislative decisions, however, such moral decisions and judgments must be assessed in light of Charter values.

. . . children matter. They are the most vulnerable members of our society. They are vulnerable to emotional, sexual, and physical abuse. Our children must have the opportunity to grow up in safe, nurturing communities protected from such abuse.

The purpose of a law specifically addressing child pornography is to deal with the sexual exploitation of children and to make a statement regarding the inappropriate use and portrayal of children in media and art which have sexual aspects.

Our message is that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners. [Emphasis added.]

State parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or any other unlawful sexual practices;
(c) the exploitative use of children in pornographic performances and materials.

Article 34 reflects the international community's strongly held belief that the protection of children from the harms of child pornography is essential to their rights.

It is ludicrous to believe that child pornography has no effect on those who watch it. If that were true, why do we have advertisers selling billions of dollars of advertising for 90-second commercials? If 90 seconds work in advertising, we are fools to believe that 90 minutes of viewing adult sex with children will have no negative influence on those who are already addicted to children.

(House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, Issue No. 105, June 10, 1993, at p. 105:21)

However, there is a dearth of empirical research which addresses whether these types of attitudes actually cause sexual abuse. The difficulty in obtaining empirical proof of a link between the possession of pornography and criminal behaviour was described in the Badgley Report, supra, vol. 2, which cited the U.K. Report of the Committee on Obscenity and Film Censorship (1979), as follows, at p. 1273:

Since criminal and anti-social behaviour cannot itself, for both practical and ethical reasons, be experimentally produced or controlled, the observations must be made on some surrogate or related behaviour. . . . The fundamental issue in this field concerns the relations that hold between reactions aroused in a subject by a represented, artificial or fantasy scene, and his behaviour in reality. . . . We can only express surprise at the confidence that some investigators have shown in supposing that they can investigate this problem through experimental set-ups in which reality is necessarily replaced by fantasy. [Emphasis added in Badgley Report.]

This difficulty, however, should not serve as a bar to prohibiting the possession of child pornography. In this regard, the comments of Burger C.J. in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), at pp. 60-61, on obscene material are apposite:

Although there is no conclusive proof of a connection between antisocial behaviour and obscene material, the legislature . . . could quite reasonably determine that such a connection does or might exist.

In our view, based on the evidence, Parliament's apprehension that child pornography reinforces the cognitive distortion that children are appropriate sexual partners was reasonable.

It's often used as a tool by pedophiles to seduce children. They use it as a tool to lower their inhibitions. They do that by exposing the children to photographs. They'll usually start out with photographs of partial nudity and then they'll work their way up to total nudity and children being involved in actual sex acts.

Another dangerous part is that when they photograph these children, especially if they're in the neighbourhood, the children may very well recognize their peers, so there's that added pressure that if it's all right for an adult to photograph their peers in the nude and take advantage of them and exploit them, then perhaps it's all right for them to do that with them.

(Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, supra, at pp. 105:4-105:5)

See also Badgley Report, supra. The potential of child pornography as a grooming tool is often evident from the manner in which the material is presented. For example, in the voir dire, Detective Waters described a comic book called Cherubino which depicts a child with an adult male as a team of crime fighters. Each crime fighting episode ends with a sexual encounter. The pornography is thus produced in a form which is appealing to children, encouraging them to believe that such behaviour is normal.

the occurrence of unwanted exposure to pornography may have been experienced by a sizeable number of Canadians, many of whom were children and youths when the incidents took place. In many of these incidents, the persons committing these acts were well known to children or were responsible for their welfare. One in 63 persons (1.6 percent of persons in the National Population Survey) reported having been exposed to pornography and also having been sexually assaulted at the time or following the exposure.

In the Committee's judgment, the incidents reported likely constitute an under-estimate of the occurrence of situations involving exposure to pornography followed by a sexual assault.

Twenty of the 33 persons who reported that they had been shown pornography and sexually assaulted by the same person were children when the incidents occurred (vol. 2, at p. 1279).

The general definition of obscenity does not reflect the state's particular and more compelling interest in prosecuting and punishing those who promote the sexual abuse of children in this manner. The definition of "obscene publication" in section 159(8) of the Criminal Code pertains to the overall content of the publication, rather than to the circumstances of its production. In reference to child pornography, it is the circumstances of its production, namely, the sexual exploitation of young persons, which is a fundamental basis for proscription. [Emphasis deleted.]

To fill the gap in the Criminal Code the committee recommended that the private possession of any visual representation of a person under 18 participating in explicit sexual conduct (including the lewd exhibition of the genitals) be prohibited (vol. 1, at pp. 102-103). The Fraser Committee expressed the concern that the existing law of obscenity would not capture child pornography prepared in private for private use, because of the application of a more forgiving community standard for materials used privately (vol. 2, at p. 584). It also recommended that the private possession of child pornography be prohibited. These recommendations contribute to the conclusion that Parliament had a rational basis for deciding that prohibiting the private possession of child pornography was essential to the protection of children from the abuse inherent in its production.

. . . s. 1 should not operate in every instance so as to force the government to rely upon only the mode of intervention least intrusive of a Charter right or freedom. It may be that a number of courses of action are available in the furtherance of a pressing and substantial objective, each imposing a varying degree of restriction upon a right or freedom. In such circumstances, the government may legitimately employ a more restrictive measure, either alone or as part of a larger programme of action, if that measure is not redundant, furthering the objective in ways that alternative responses could not, and is in all other respects proportionate to a valid s. 1 aim.

In concluding that the objective outweighs the harm done to the right protected by s. 2(b), I have considered that s. 172 reaches inside the home. That reach is a significant aggravating feature when considering the harm done by the section to the right of freedom of expression. That same feature, however, is essential if the section is to serve its purpose. Unfortunately, it is in the home where children are most susceptible to the kinds of conduct at which s. 172 is aimed.

Doherty J.A.'s observation is particularly apposite in the context of this case. As we have discussed above, the evidence is clear that a large portion of child pornography is produced privately, and used privately by those who possess it. The harmful effect on the attitudes of those who possess it similarly occurs in private. With respect to grooming, our knowledge of the sexual abuse of children has evolved to recognize that sexual assaults occur in private as often, if not more often, as in public places. We cannot agree that prohibiting the simple possession of child pornography will not have an additional reductive effect on the harm that child pornography causes. While the possession prohibition infringes privacy more than those provisions which prohibit the distribution and production of child pornography, its intrusiveness is necessary to achieve Parliament's goal. We firmly disagree with McLachlin C.J., at para. 75, where she states that self-created privately held expressive materials should be exempted from the prohibition against possession of child pornography. Whether the material is produced by the actor himself or a third party is irrelevant. Otherwise, two identical videos will be treated differently on the basis of authorship and intent, both of which are extremely difficult to prove and have no bearing on the apprehension of harm that comes from the actual content of the material.

Canadians presume that expressions which degrade individuals based on their gender, ethnicity, or other personal factors may lead to harm being visited upon them because this is within most people's everyday experience. In part, this is because of what we know and perhaps have experienced in our own lives about degrading representations of our personal identity. In part, it is because we know that groups which have historically been disadvantaged in economic or social terms are vulnerable to such expression. In part, it is because our values encourage us to be solicitous of vulnerable groups and to err on the side of caution where their welfare is at stake. In part, it is based on the short logical leap that degrading representations, and exhortation of certain views which degrade the humanity of others, can beget that behaviour.

Given the low value of the speech at issue in this case, and the fact that it undermines the Charter rights of children, Parliament was justified in its concern to include visual works of the imagination in its definition of child pornography.

[There is] the real possibility that young persons of 16 or 17 . . . may be involved in taking advantage of still younger children, by introducing them to prostitution, to performing in pornographic displays for filming, and so on. Such exploitation might be of the older child's own motion, or it might be engineered by adults who perceive the advantage in having as fronts those who are free from serious criminal responsibility.

(See also R.J.R. Levesque, Sexual Abuse of Children: A Human Rights Perspective (1999), at p. 214, citing studies including a 1996 paper in the Journal of the American Academy of Child and Adolescent Psychiatry estimating that "adolescents commit over 50 percent of sexual offenses perpetrated against children under twelve years of age".) Thus, there is no guarantee, even when a teenager is in possession of a pornographic picture or videotape depicting himself or herself, that it was created in a consensual environment or that the photograph or videotape will not be used by the teenager to groom other children into engaging in sexual conduct. The latter point demonstrates that this material has the potential to exploit children even in the hands of those who are depicted in it.

We do not, for example, consider that the principles of individual liberty and responsibility can be applied to children to the same extent as they can to adults. Children may well have valid claims to autonomy in wide ranges of conduct. However, the liberty to engage in behaviour which is regarded as harmful will be withheld from children with more frequency than it is withheld from adults. Various justifications may be offered for this. The child may be too young or inexperienced to appreciate the harmfulness of the behaviour, or its nature or extent. In addition, quite apart from the characteristics and maturity of the individual child, adult society may be protective of the state of childhood, which is seen as a time, firstly, for the enjoyment of innocence and, then, gradually, for development out of innocence. The exposure to certain kinds of influence or behaviour may be seen as a disruption of the valuable process of gradual maturation.

. . . In the case of pornography . . . we think that there is strong justification for treating children as vulnerable, and effecting some decrease in their liberty.

Parliament made a legitimate policy decision in determining that the possession of adolescent self-depictions of sexual activity should be prohibited. Depictions of teenagers have the potential to be created in conditions which are exploitative and can be used to exploit other children. The Court should defer to Parliament's decision to restrict teenagers' freedom in this area. The worry that s. 163.1 interferes unduly with the freedom of expression of teenagers must also be addressed in light of the Young Offenders Act, another set of provisions designed to address children's special needs. Under this Act, any teenager convicted for possession of child pornography would have the benefit of a more lenient sentence and measures aimed at rehabilitation and social reintegration (see s. 20); he or she would also avoid the permanence of a criminal record.

Solicitors for the intervener the Canadian Civil Liberties Association: Tory Tory, Toronto.

Solicitors for the interveners Beyond Borders, Canadians Addressing Sexual Exploitation (CASE), End Child Prostitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT) and the International Bureau for Children's Rights: David Matas, Winnipeg.

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